The filibuster falls, a victim of abuse

Former President George W. Bush won a big, if belated, victory last Thursday when the Senate voted to eliminate the use of filibusters against most presidential appointees.

In his 2005 State of the Union Address, Mr. Bush said, "As president, I have a constitutional responsibility to nominate men and women who understand the role of courts in our democracy and are well-qualified to serve on the bench, and I have done so.

"The Constitution also gives the Senate a responsibility: Every judicial nominee deserves an up-or-down vote."

At the time, Republicans controlled the Senate; but in the two years, Democrats had used the threat of a filibuster to block 10 of the president's nominees to the federal bench. Democrats were slow-walking the judicial nominations; the average time between appointment and confirmation had risen to 366 days from 249 days for President Bill Clinton's nominees.

By invoking the Senate's "cloture" rule, which requires 60 votes to halt debate, a minority party can cut off discussions without actually filibustering, a la Strom Thurmond in 1957 or Jimmy Stewart in "Mr. Smith Goes to Washington."

In 2005, Sen. Harry Reid, D-Nev., who'd just taken over as the Senate minority leader, defended the filibuster as a vital tool. "It encourages moderation and consensus. It gives voice to the minority, so that cooler heads may prevail."

Never mind. That was then and this is now.

Last Thursday, Mr. Reid finally did what he'd threatened to do three times since becoming majority leader in 2007: He pulled the trigger on "the nuclear option."

Mr. Reid, using a parliamentary trick first envisioned by none other than Vice President Richard Nixon in 1957, decided that the president of the Senate (the vice president) could ask the Senate if a cloture motion was out of order.

On Thursday, that was Sen. Patrick Leahy, D-Vt. On a 52-48 vote, three Democrats voting with the Republicans, the deed was done.

The ruling applies to all judicial nominees except Supreme Court justices and all executive branch appointees. It does not apply to legislation, though that may be next.

We wish it had not come to this. We have argued that the filibuster is valuable, but that it should be difficult to use.

By adopting the 60-vote rule in the 1970s and agreeing that the mere threat of a filibuster was sufficient, the Senate invited abuses.

And abuses came, by Democrats when Mr. Bush was president and by Republicans when Bill Clinton was president.

But until recently, the abuses were kept to a minimum because most senators tried to get along.

Now, with political partisanship as deep as it has been since Reconstruction, the abuses reached the point where Mr. Reid decided to pull the trigger. Under President Obama, it has taken an average of 610 days for nominees to get a vote.

Minority Leader Mitch McConnell, R-Ky., warned that the Democrats could expect retaliation if the GOP regains the majority. Tea-party pressure inevitably would cause the GOP to go nuclear against the Democrats.

The proximate cause of the rule change was the GOP refusal to let three of President Barack Obama's nominees to the U.S. Court of Appeals in Washington come to a vote. That court, because it generally has jurisdiction over regulatory agencies, is regarded as second only to the Supreme Court in the impact of its deliberations.

Chief Justice John G. Roberts, himself an alumnus of the D.C. Court of Appeals, has written that at least a third of the cases that come before the Supreme Court deal with regulatory challenges.

That's one reason why judges from that appeals court often find their way to the Supreme Court.

Currently there are four judges on the appeals court appointed by Democrats (including one of Mr. Obama's nominees who was confirmed after a long delay earlier this year) and four appointed by Republicans. Five of the six senior judges, who are semiretired, are Republican appointees.

Republican senators did not want the court's overall conservatism diluted by Mr. Obama's appointees, no matter how qualified they are.

Republicans are correct that the Democrats played this game, too. But this year there have been an average of 69 vacant judicial seats, creating long delays and heavy caseloads. The highest number of vacancies during the Bush administration was 35.

Republicans have filibustered, or threatened to filibuster, Cabinet nominees, deputy secretaries, agency heads and commissioners. This year, they briefly filibustered Chuck Hagel's nomination as defense secretary, and he used to be a Republican senator.

Taxpayers have been deprived of effective government, something that is difficult under the best of circumstances.